Trademarks are the main tool used by Big Tech to cement their monopolies

Trademark protection and enforcement for Big Tech1 trademark owners in the United States are akin to adhesive tape that holds a cardboard box together to make it more resilient. A box is first assembled by positioning a flat cardboard into a 3D rectangular shape, folding the bottom four flaps, and subsequently adding adhesive tape to provide stability. The builder of the box puts material into the box, encloses it by folding the top four flaps, and then provides a layer of adhesive tape to ensure protection. Big Tech companies have built various “boxes” comprised of their different products and services within their respective markets (i.e., social networking, online search and search advertising, mobile operating system, and U.S. online retail).2 Moreover, Big Tech companies have selected the material or information allowed (o r prohibited) within each box,3 including, but not limited to “fake news,” misinformation, systemic biases, or viewpoints to benefit a handful of profit driven enterprises. Analogous to adhesive tape used to provide stability and protection for the contents of each box, trademark law provides protection for Big Tech brands and their cultivated goodwill among consumers. A trademark can be any “word, name, symbol, or device” that is used by a person or entity to “identify and distinguish his or her goods” as being the source of the product or service.4 When consumers encounter a trademark affixed to a product (or advertising for a service), the trademark allows the consumer to make a mental association between the product (or service) and the source.5 This allows the consumer to ascertain the value or quality of a product prior to purchasing it since the consumer can identify the source as the producer of that product.6 Thus, trademarks play an important economic role in helping consumers identify unobservable features of a trademarked product (i.e., durability, preference, taste, etc.) and incentivizing producers to maintain consistent levels of quality over products or services.7 U.S. Trademark law provides Big Tech with legal tools to vigorously protect their brands and goodwill. Big Tech takes advantage of these legal tools through aggressive and intimidating pre-litigation and litigation tactics, oftentimes, to the detriment of their competitors. Since trademarks can last in perpetuity8 and relatively few constraints are imposed on trademark owners, Big Tech can vigorously enforce its trademarks against alleged infringers indefinitely. This allows Big Tech to provide an extra layer of everlasting protection to Big Tech “boxes” of information within its relevant market.9 Thus, Big Tech uses trademarks as a weapon to create resilient “boxes” that enclose society (i.e., the relevant consuming public within each market) within, thereby creating an echo chamber where consumers are influenced by a select few. This paper discusses how broad U.S. trademark laws adversely impact competition and consumer perceptions relating to Big Tech brands and the quality of goods or services provided. Part I focuses on anticompetitive techniques used by Big Tech to maintain market dominance and monopolization. Part II introduces trademark law and focuses on how Big Tech uses it as a tool to vigorously protect and enforce Big Tech trademarks from infringement by competitors. Part III discusses how Big Tech’s exploitation of trademark law helps Big Tech reinforce its durable market power at significant costs for U.S. consumers.10 This paper is not a blueprint outlining how to break up Big Tech market dominance, but rather, this paper seeks to highlight the significant issues that Big Tech market dominance poses within the trademark realm. Thus, Part IV concludes by addressing potential remedies available in trademark law that would make Big Tech more accountable, or at least limit Big Tech’s power to engage in frivolous trademark litigation. These remedies focus on preventing Big Tech from using trademark law as a tool to maintain monopoly power; however, other remedies to control Big Tech market dominance may include imposing interoperability requirements, imposing nondiscrimination requirements to prevent Big Tech from self-preferencing or restoring antitrust law enforcement. 11